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tv   [untitled]    May 15, 2011 1:00am-1:30am PDT

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their own private attorney. we found for example, more than eight out of 10 felony defendants were indigent and must therefore be provided with counsel. we did a study of cases looking at the systems and we discovered that the system for providing the sturl providing indigent defense services in many countieses is filing perform the most basic duty required of a defense attorney and that is to conduct a thorough investigation of the facts. that is what protects the innocent from wrongful conviction. i think i have a graphic here that shows what we found in this study of over 2,000 cases, almost half of the convictions that were overturned on appeal because of defense attorneys involve the failure to investigate. now you might think that this is a problem with the lawyers.
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unfortunately, we tend to blame the problems of our system on the individuals involved and that ignores the wider systemic factors. i think failure to investigate is a good example of that. why we had this failure to investigate results not from individual lawyers so much as the inability of individual lawyers to do that job because they don't have the resource. over 2/3 of the judges that we interviewed admitted that they had a problem in their county investigating indigent cases because they didn't have the resources. all of the public defenders that we interviewed and sent questionnaires to that we surveyed all of them reported they had not have enough adequate investigators on their staff and in fact, a number of these crabblingt defenders don't have any -- contract defenders don't have any staff investigatedors at all.
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the national standard promulgated by goals states there should be one investigator for every three attorneys. we found that most offices in this state don't comply with that. they don't meets that requirement. some had as many as nine attorneys to one investigator. that problem is coming pounded by the fact that attorneys also are overloaded. more than three out of four public defender offices reported excessive attorney caseloads were a significant problem in their office. you have a multiplirefect. if there are mot enough hours in the day to investigate the cases obviously some soft cases don't get investigated. that's the problem that we're seeing. now other problem of course deals with well, why is that situation? public defenders represent the lion's share of all of the
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cases. yet what we see, you would expect them to have rough parity with the prosecutor's office. we don't see that. what we see statewide is for every dollar spent on prosecution only 53 cents is spent on average for the indigent accused. yet in some counties as much as 95% of all the cases involve indigent defendants. continuing to underfund indigent defense and continuing to tolerate excessive investigator caseloads and excessive attorney caseloads, if we continue to do that we substantially impair the ability to provide good reputation. >> thank you very much. wow. 53 cents to a dollar. [applause]
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that's why i'm always broke. all right. let's go to public defender kenneth. ken, tell us. you are in fresno. first of all, what is it like in fresno? [laughter] and tell us about this battle that you have been going through where, you know, it almost sounds like a horror movie where they are going after you with a buzz saw and at the same time, they have used contract attorneys to try to undercut the work that your office does. >> well, the problem in fresno, it is hot. trezz know is hot of course in the -- fresno is hot of course in summertime. it is hot all the time for me. i think the problem just mentioned right now is disparity in the funding theme as opposed to the ore parties involved in the criminal -- other parties involved in the criminal justice
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system. most of the funding agencies for us is almost 100% from the county. while the prosecution has the benefit of grants. in fact, i believe the district attorney might have at least half of their budget is provided by grants. that is not provided to the indigent defense providers. federal grants are almost all directed toward prosecution and law enforcement. so the problem to have vast resources that i'm facing right now is that you have grant funding the police department, the sheriff's deft, the district attorney's office. there is a share that -- etc., etc. that share, which for them is a portion of their funding is almost my entire funding so when you say you're going to cut 13% off everybody equally. well, 13% for us is more than
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13% of their entire budget than for the other agencies. now the problem is that's the ripple effect we just had here. now they still have their investigators because they have other agencies that provide the investigation. we don't. our investigators are the ones that have to be trimmed off because we can't pay for them. our attorneys, again, they are paid for by the county. we have to cut back our attorneys. meanwhile, the prosecution, yes, they may have to cut back the attorneys. there are a lot of attorneys still being funded by these grant positions. so we're up against a resource that doesn't go down in the same proportional rate as we do. we get contracted further than they are. that's the disparity now. they try find a way to make it cheaper. those ideas are always popping up. you see them all over the state. is it cheaper to do it by
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privatizing the public defender? as opposed to maintaining the institutional public defender? i think that we see what we see as public defenders, maybe i'm biased in this regard but we have only one focus in mind and that's to our clients. our clients come first. damn to or the peete pidto if it is going -- damn the torpedo if it is going to cost us money. they have a conflict of interest. they are for the profit margin. and now profit margins might override to going forward and doing what it takes to get the job done and i think that is the difference in attitude a lot of times i'm seing in the providers you from the institutional public defenders opposed to contract public defenders. >> great. thank you. [applause] thanks very much for coming up here and being part of this
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discussion because we want to be able to support you in the work that you're doing. i'm going to go back to aimy before going to john and one of the things that you talked about in your book, is the role of prosecutors. and the role that prosecutors play in justice. prosecutors as we know have a tremendous amount of power. they have the ability to decide who to charge or when not to charge. what were some of the things that you noticed or found about prosecutor offices in your book and then i'm going ask john to talk about what his study shows in terms of what prosecutors are doing right and what they are doing wrong. >> well, prosecutors pretty much have unfair discretion to decide what to prosecute and whatnot to prosecute. and i had gone to a county in
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mississippi and i got there because there had been a front page story staying county was suing the state saying it didn't have enough money to defend the poor. so i get to court and i'm expecting to see lines of people coming out the door like i did in georgia but when i get there there were only eight people. and was sort of perplexed. where was everybody? was thereto not a lot of crime in this place? i start giving out my cards trying to learn about this place. my cell phone starts ringing off the hook. everybody has got a story. at the library, the librarian leans across the desk and says my home was broken into three different types in one week. they came and they interviewed me. they said they knew who the guy was but the case never went anywhere. so i had all of these stories
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and went to the clerk to have court and she is a woman named miss wiggs. she has a helmet of white hair and bright blue eyes and a plain talking way of speaking. i said what is going on here and she said you want to know what's going on? i'll tell you. she points to this list above her besk and now these are lists, names of defendants who have been changed with a crime in lower court in the justice court and they have been bound over to the circuit court for the prosecutor to bring to grand jury. by law in mississippi, the prosecutor has to give every case to the grand jury and the prosecutor can say there is not a lot of evidence in this case and this case has resolved itself, i don't think you should indict but it is people who have to decide what gets to court and what doesn't get to court. she said here i have 80 people
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on this list and when we came to court on the other day there was almost nobody there. people call me all the time and tell me horrible things that have happened to them and their children. their kids were molested. they were beaten up. someone was arrested yet the crime never goes anywhere. i asked her if i could use the list as a road map to see what was going on in the county. so i copied it and started going through and getting all the case files and what i found was that when there was a big, important case like there was a big murder and some people from outside the county came in and murdered an entire family and lit the house on fire, then the d.a. would go full hog and would prosecute the case to the nth degree. but when cases affected regular people, even a carjacking or many other crimes that i talk about in the book, those cases
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got put asise side because his investigator would say i don't know if we can win this one. and that one woman, she had been beaten up by her boyfriend underneath a bridge. her daughter and her niece were inside of a locked car watching, screaming to get out and they watched as he pummeled her with a tire iron and at the scene of the crime according to the police report there was a hair we've, there was one of her shoes and this was a picture in the back of her file that showed these huge bloody contusions on her face, a stripe. she was in the hospital for three days and she couldn't work anymore because he had beaten her so badly on her back that she couldn't bend over. she was a housekeeper in a casino. i tried to figure out why wasn't this case prosecute.
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i talked to the victim and the perpetrator's family and i talked to the police officer and i talked to the investigator and i couldn't fitting out. why? why? why? what is wrong with that case? why didn't this case go anywhere? i went to miss wiggs. i said why didn't this case go anywhere? she said let me look back and see when was the last time a domestic violence case was prosecuted? it turns out this prosecutor hasn't prosecuted a domestic violence case in 20 years. there are these patterns that we can't see or know because under the guise of discretion and they don't have to make it public, and if you lived in the county, all right, you might know, i know somebody who was beaten up but the case didn't go anywhere, nobody put together these patterns. that's one of the great meanings
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of ordinary justice. >> john, do you know miss wiggs? >> new york city but i wish i did. -- no, but i wish i did. i remember reading somewhere a few years ago that a prosecutor had never been disbarred. i think that changed this year. there was a prosecutor suspended for hiding evidence in santa clara county for the first time this year in california. but very rarely are prosecutors ever held accountable for misconduct or for unethical conduct. why is that and what did you find in your study as it related to the kind of misconduct that was common? >> i think in order to get to that question, taking off on amy's story because i think it
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illustrates a common problem in prosecutors' offices around the country. but with what three simple reforms would do to help address that. that deals with the issues of transparency, accountability as you mentioned, jeff and the culture of prosecutors' offices. as both you and amy have said prosecutors are arguably the most powerful figures in our criminal justice system. they have a duty to protect the innocent and they also have a duty to convict the guilty and that powers that they have as you described, what charges to bring. what evidence to present? who are they going to charge with that crime? these are all extraordinary, enormous powers. and we give the prosecutors this power because we believe in our public safety. but along with this extraordinary power that we
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grant them, we believe that they are going to do so responsibly. and that's not what is happening in a lot of cases. you know, when prosecutors abuse their power, they, you know, kind of like put their thumb on the scales of justice. the playing field is no longer level. it is clearly in the prosecutor's favor and their abuse and unethical and unconstitutional behavior really stems from a culture that is about getting a conviction. you know, it is easy to point at cases where misconduct is blatant and evident. i think we have to take a look at all misconduct and abuse that occurs. when you talk about transparency, that's downtown
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transparency in a prosecutor's -- the best counter to transparency in a prosecutor's office is to open up the doors to that office sapped see what is going on. the -- and see what is going on. they have recommended that prosecutors' offices adopt and implement a set of policies and guidelines and recommend that those policies and guidelines be made available to the public but despite these recommendations, the overwhelming majority of prosecutors' offices around the country don't have established policies and procedures and the research that we did, you know, we found that there are 2300 state prosecution offices in the country so that doesn't include city offices, county offices and the such. there is a relatively small number of prosecutors offices in the country that have actually
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adopted the man wells here in california. -- when they took a look at prosecute ya'll misconduct they invited comments and they only found three jurisdictions that had policies. l.a. county, ventura county and santa clara county. the california district attorney's association wrote the commission and said all the other counties have opted not to have manuels but they do require deputies follow court rules and handle court decisions and the law. well, think about it. here you the most powerful actor in the criminal justice system. we as citizens in a community rely on them to be doing their job responsibly and ethically, yet, we have no way to measure how they are doing it because --
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because as both of you have said, there is no transparency at all in that process. whereby if you do have these manuels and you do make them public, now you have a set of criteria to hold prosecutors accountable for what it is that they do. dealing with accountability, the second issue i think is highlighting the results so far in two different cases. the first case is the case of former senator ted stevens when just over a year ago attorney generic holder threw out the conviction of senator based on gross misconduct in the case, even the judge of that case, judge sullivan, said after
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repeated orders from the court to the prosecutors, he had never seen a case that has seen more of use in his career. attorney general holder was right in terms of acting swiftly, in terms of throwing out that condition. he also stated that the department of justice's office of professional responsibility would investigate the actions of the two officers, yet a year after that, we still have heard nothing out of office regarding their conduct. the department of justice has publicly talked about how they increased training in terms of discovery obligations, and they
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have issued memos in terms of what they are supposed to be doing, yet they have yet to do anything regarding the behavior of those prosecutors. contrast that to the case that occurred a couple years ago, that boasts -- that of the prosecutor in north carolina, where six months after the charges were brought against the lacrosse students, and they were charged with rape, the defense attorneys uncovered evidence in the files, and north carolina is open, but they found evidence in the files showing their clients were innocent. the state attorney general immediately dismissed the charges against those individuals, and a few months after that, he was disbarred for
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withholding evidence and evidence of innocence as well as improper statements he made to the media. it dealt with the misconduct, and within six months, and he was disbarred. we have nothing in terms of the behavior. this occurs across the country, and you would say these are two cases of ordinary in justice. this goes to the culture of this
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and seeking to convict. recently, the current district attorney -- one of the things boasted about in his retirement was they have the most convictions of any county in the state. two other statistics coming out of that office is in the high- profile child molestation cases he filed in the 1980's, he got 26 convictions. 25 have been overturned, and
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they are paying civil damages to the individuals and their families who are wrongfully convicted. that is a culture of convict at no cost. how do you deal with some of these abuses? one way is you have the prosecutors manuals. another way is to open the file. prosecutorial misconduct in terms of failure to turn over evidence is really probably the most common cause of misconduct. >> we have that issue here, so i want to come back to that. before i asked common you will have an opportunity to ask questions, -- before i asked,
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you will have the opportunity to ask questions. the next area i want to talk about are the courts and judges, and before i have shawn explain his experience with misdemeanor courts, where you just tell us -- he was described as a great judge, but he was violating everybody's writes everyday, and he was thrown off the bench. tell us that story. >> this is a story of a judge in upstate new york, and he is a judge in a place called troy, new york, which has historically been a beautiful day.
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-- beautiful town. he got the idea he wanted to help clean up troy. if you walk the streets with hank bauer, he is a celebrity. people are hanging out their windows, do you need an umbrella? he is that type of guy. i told him i was writing a book called "ordinary in justice," and you are one of the main characters, and he would pick up the phone, and i could hear him smiling, because in his heart of hearts -- he has been kicked off the bench by the new york state judicial commission, but he drew the things he has done nothing wrong, -- he truly it sinks he has done nothing wrong, and when
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they told him -- he truly thinks he has done nothing wrong. when they told him he did things like not reading people their rights, not assigning an attorney, and pleading someone guilty without him even being in the room -- he looked at the charges commo, and he said, very serious. how does the have the reflection of himself as a good judge? everyone in his community thinks he is a good judge and what happened to hank bauer is a grossness justice, but at the same times, he gave a $25,000 bail to a man who was riding his bike on the sidewalk without a bell, and that is a crime in troy, new york. clearly, there are lots of
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little kids in the suburbs riding their bikes on the sidewalk without a bell, but this guy was a homeless guy, so they arrested him. they brought him before the court. hank gave him a $25,000 bail. he did not have $25,000, so he sat in jail for eight days, and he came back and pleaded guilty. this is really the regular person that is symbolic of ordinary justice. there is a woman who has five kids. she is a nurse. one beautiful spring day she is sitting on the stoop, and she is reading of friends hair, and the police say, do believe -- she is braiding of friends hair, and the police say, and you realize there is a no loitering sign, and she offered to get off, and they arrest her.
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they bring her before the judge, and they give her a $25,000 bail. she is never given an attorney, and she sits in jail for eight days. she has a relative take care of her five kids. eventually, she comes before the judge. the judge says, we will give you a couple hundred dollars as a fine, if you plead guilty, and we will call it a day. she says ok. she pleads guilty, and she thinks to herself, i will never pay the fine, and she gets the guy who also pleaded guilty, and they have a big party. they thing, this is all over with, and a couple minutes -- a couple years later she applies for public housing, and she is rejected because she has a criminal record. she had been loitering that day, and she is not eligible